Citation Nr: 1704972
Decision Date: 02/17/17 Archive Date: 02/24/17
DOCKET NO. 09-42 020 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
Whether the character of the Veteran's January 1974 military discharge constitutes a bar to VA benefits.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
K. M. Georgiev, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1970 to January 1974. His service period includes time lost under 10 U.S.C.A. § 972 from September 24 to October 1, 1972, October 4 to October 27, 1972, October 31, 1972 to January 30, 1973, February 6, 1973 to March 12, 1973, June 6 to October 31, 1973, and November 1, 1973.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 administrative decision of the RO in Montgomery, Alabama, which determined that the character of the Veteran's service from July 20, 1971 to January 23, 1974 was a bar to VA benefits.
The appeal was denied by a July 2014 Board decision. The Court of Appeals for Veterans' Claims ("CAVC" or "The Court"), in a May 2016 Memorandum decision, vacated and remanded the denial.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The July 2014 Board denial found that there was no indication that the Veteran was insane at any time that he went absent without leave (AWOL) or thereafter. The Court's May 2016 decision determined that the Board misapplied the definition of "insanity" under 38 C.F.R. § 3.354(a), erroneously relied on a report of medical history that did not consider the Veteran's mental status for each time he was absent without leave, and failed to obtain a medical opinion to assess the Veteran's mental status for each time he was absent without leave.
The Veteran was discharged from service under conditions "other than honorable" based on a pattern of misconduct, including four episodes of being AWOL for a period of 270 days and time lost for 35 days of confinement totaling 305 days of time lost. The Veteran was AWOL for 8 days from September 24 to October 1, 1972, for 24 days from October 4 to October 27, 1972, for 92 days October 31, 1972 to January 30, 1973. The Veteran continued to absent himself from his unit for 145 days June 6 to October 31, 1973, and for 1 day for November 1, 1973.
In a November 1973 report of medical history, the Veteran stated that he had frequent and severe headaches and "nervousness" issues. That same month, the Veteran was examined by a physician who noted, "No psychiatric disorder demonstrated on this examination," and that "[t]here are no physical or mental defects which warrant medical disposition." The physician also noted in a mental status evaluation from that same month that, in part, the Veteran had normal behavior with a level mood, normal thought content, good memory, and no significant mental illnesses and that he was mentally responsible, fully alert, and oriented. In December 1973, the Veteran requested a discharge for the good of the service, and, in January 1974 his request was approved.
VA medical records from 2007 indicate that the Veteran was diagnosed with posttraumatic stress disorder, depression, and general anxiety disorder.
In light of the evidence so stated and the Court's decision, the Board finds a VA psychiatric examination warranted to assess the Veteran's mental status for each time he was absent without leave.
Accordingly, the case is REMANDED for the following action:
1. Schedule a psychiatric VA examination. The entire claims file should be made available to the examiner, who should indicate on the examination report(s) that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.
The examiner should consider the Veteran's in-service pattern of misconduct, including four episodes of absence without leave for a period of 270 days and time lost for 35 days of confinement totaling 305 days of time lost. The examiner is asked to opine if, as to any of the occasions during which an absence without leave occurred, the Veteran met the following definition of insanity:
"An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides." 38 C.F.R. § 3.354(a) (2016).
In entering the aforementioned opinions, please consider the following evidence: In a November 1973 report of medical history, the Veteran stated that he had frequent and severe headaches and had "nervousness" issues. That same month, the Veteran was examined by a physician who noted, "No psychiatric disorder demonstrated on this examination," and that "[t]here are no physical or mental defects which warrant medical disposition." In December 1973, the Veteran requested a discharge for the good of the service, and, in January 1974 his request was approved. VA medical records from 2007 indicate that the Veteran was diagnosed with posttraumatic stress disorder, depression, and general anxiety disorder.
2. Thereafter, issue a Supplemental Statement of the Case readjudicating the character of discharge claim. If any determination remains unfavorable to the Veteran, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).